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The new Victorian Windfall Gains Tax
Technical article

The new Victorian Windfall Gains Tax

From 1 July 2023, many Victorian land owners whose land is rezoned will face the prospect of paying a significant new tax to the State Revenue Office in the form of the Windfall Gains Tax (“WGT”).

The WGT was first announced by the government on 15 May 2021 and is now a step closer to implementation following the introduction of the Windfall Gains Tax and State Taxation and Other Acts Further Amendment Bill 2021 (“the Bill”) into Parliament.

The details below are based on the current wording of the Bill and are therefore subject to its passage through Parliament and any amendments that might be made.

What is the WGT?

The WGT will be a new tax in Victoria commencing from 1 July 2023 that is triggered when there is an uplift of more than $100,000 in the value of land due to a rezoning of the land (other than an excluded rezoning).  The maximum tax payable is 50% of the uplift.

What land will be subject to the new tax?

Any land in Victoria that is rezoned, other than under an excluded rezoning, may be subject to the WGT if the rezoning results in an increase in the value of the land of more than $100,000.

An excluded rezoning (i.e. rezoning that does not trigger the WGT) is limited to the following:

  • A rezoning between schedules in the same zone (for example, from Neighbourhood Residential Zone Schedule 2 to Neighbourhood Residential Zone Schedule 1);
  • A rezoning to the Urban Growth Zone within the Growth Areas Infrastructure Contribution (GAIC) contribution area;
  • The first rezoning after 1 July 2023 of land that was in the GAIC contribution area before that date;
  • A rezoning to a public land zone or between different public land zones; or
  • Other rezonings that the Treasurer may declare to be excluded rezonings in the Government Gazette.

What triggers WGT?

Liability for WGT will be triggered by a rezoning event other than an excluded rezoning (“WGT event”) at the time the rezoning takes effect under the Planning and Environment Act 1987.

Who is liable for WGT?

The owner of the land at the time the rezoning takes effect is liable for WGT.

Multiple owners

Where land is owned by multiple persons, the owners will be jointly assessed for WGT without regard to the separate interest of each owner.

Land held on trust

Where land is held on trust, the trustee will be assessed for the WGT in relation to all land subject to the trust, without regard to land held by the trustee for any other trust or for the trustee’s own benefit.

Land held by related corporations and trusts

Members of a group of related corporations, trusts or a combination of related corporations and trusts are jointly and severally liable for WGT on all the land held by members of the group that is rezoned by the relevant WGT event.  The grouping rules in the legislation are broader than the equivalent rules that apply for land tax purposes, particularly in respect of their application to groups of trusts.

Calculation of WGT

The WGT will be calculated using the following approach:

  1. Ascertain the Capital Improved Value of the relevant land immediately before the WGT event occurred – this will be the Capital Improved Value under the most recent annual general valuation prepared for Council rating purposes, calculated as at 1 January;
  2. Ascertain the Capital Improved Value as determined in a supplementary valuation by the Valuer-General Victoria or a valuer nominated by the Valuer-General as at the same date (i.e. 1 January prior to the WGT event) but as if the new zone was in place at that time – the Commissioner can request a supplementary valuation from the Valuer-General and use it for WGT purposes;
  3. Deduct the amount in (1) from the amount in (2);
  4. Apply (1) to (3) in relation to all other property of the land owner or relevant group that is rezoned by the same WGT event;
  5. Aggregate the amounts from (3) where the amounts are positive;
  6. Minus any deductions prescribed by regulations; and
  7. Multiply the result by the relevant WGT rate.

In other words, in simple terms the formula is as follows (ignoring any negative taxable value uplifts):

(Aggregated Value Uplift – Allowable Deductions) × Applicable WGT Rate

Tax Rates

Aggregated Taxable Value Uplift WGT Rate
$0 to $100,000 Nil
$100,001 to $499,999 62.5% of uplift above $100,000
$500,000 or more 50% of total uplift

When is WGT payable?

A land owner will become liable for WGT at the time of the rezoning event and will be issued a notice of assessment by the Commissioner of State Revenue (“Commissioner”) for the WGT liability.  The WGT will be payable by the due date specified in the notice of assessment.

The onus is on the person served with the notice of assessment to notify the Commissioner of any errors or omissions (such as other land owned by the person or the group of which the person is a member being omitted from the assessment) within 60 days of the date of issue of the assessment.

Is there an option to defer the payment of WGT?

Before the due date of the notice of assessment, the land owner can elect to defer payment of up to 100% of the WGT until –

  • a dutiable transaction (other than an excluded dutiable transaction – see below) occurs in relation to the land;
  • a relevant acquisition (other than an excluded relevant acquisition – see below) occurs in respect of a landholder who is the owner of the land; or
  • the day that is 30 years after the WGT event,

whichever occurs first.

If the land owner elects to defer payment of part or all the WGT, the deferred liability will accrue interest at the 10-year bond rate applying from time to time (1.84% as at 30 September 2021).

Where the land owner elects to defer part but not all of their WGT liability, the part not deferred must be paid by the due date in the notice of assessment, otherwise the entire WGT liability becomes immediately payable as if the election to defer part of the WGT had never been made.

Once the deferral ceases, the deferred WGT plus accrued interest must be paid to the Commissioner within 30 days of the relevant event which causes the cessation of the deferral.

Excluded dutiable transactions

Excluded dutiable transactions include:

  1. The acquisition of an economic entitlement in relation to the land;
  2. A dutiable transaction which occurs for no consideration; and
  3. A transfer of land owned by a charity which has been used and occupied exclusively for charitable purposes since the WGT event and where the transferee will also be a charity that will continue to use the land as charitable land.

For the transactions described in (2) and (3) above, the relevant transferee may elect to assume the liability to pay the deferred WGT and accrued interest (instead of the owner(s) of the land at the time of the WGT event).  If that election is not made on or before the date of completion of the dutiable transaction, the deferred WGT and accrued interest will become payable by the transferor within 30 days.

Excluded relevant acquisitions

Excluded relevant acquisitions include:

  1. A relevant acquisition in a landholder for landholder duty purposes that arises solely from a pro rata increase in the interests of all unitholders (where the landholder is a unit trust) or shareholders (where the landholder is a company); and
  2. A relevant acquisition of a further interest in a landholder within the meaning of the landholder duty provisions of the Duties Act 2000.

A transaction that is an excluded dutiable transaction or excluded relevant acquisition will not trigger the cessation of a WGT deferral arrangement.

Outside of the above deferral mechanism, the Bill provides no discretion to the Commissioner to extend the time for payment of WGT or accept payment of WGT by instalments.

Are there exemptions from WGT?

The proposed exemptions and waivers from WGT are summarised below:


1. Residential land exemption

WGT is not imposed on up to 2 hectares (i.e., 20,000 square metres) of residential land (whether on one or more titles) or primary production land that includes a residence fit for occupancy at the time of the rezoning, or where a building permit for the construction or renovation of such a residence has been issued and other requirements are met. This exemption applies regardless of whether the dwelling is the owner’s principal place of residence (in other words, it can include holiday homes and investment properties).

2. Rezoning errors

WGT is not imposed if the rezoning constituting the WGT event is caused by an amendment to correct an obvious or technical error in the Victoria Planning Provisions or a planning scheme.
Where there was a previous WGT event, WGT was assessed on the previous event and the correction results in a negative value uplift, the Commissioner must reassess the original WGT event and the owner of the land is entitled to a refund of WGT and interest paid on the original event.

3. Pre-existing contracts of sale and options

WGT is not imposed on land rezoned by a WGT event if the land is subject of a contract of sale, provided that:

  • the contract was entered into before 15 May 2021; and
  • it has not been completed by the transfer of the land before the WGT event occurred.

WGT is also not imposed on land subject to an option to enter into a contract of sale, provided that:

  • the option was entered into before 15 May 2021;
  • the terms of the contract were settled at the time of the grant of the option; and
  • the option has not been exercised or the contract of sale to which the option relates has not been completed by the transfer of the land before the WGT event occurred.

4. Rezonings underway before 15 May 2021

WGT is not imposed on land rezoned by a WGT event if the Commissioner is satisfied that:

  • the relevant planning scheme amendment constituting the rezoning was prepared by a Council or by or at the request of the Planning Minister;
  • the amendment request was created and registered in the Amendment Tracking System before 15 May 2021 or the Planning Minister agreed to prepare the amendment before that date; and
  • before 15 May 2021, the owner approached the Council or Planning Minister to request the rezoning and incurred significant costs (being the lesser of $100,000 or 1% of the capital improved value of the land immediately before the WGT event) for or to support the rezoning.

The Amendment Tracking System is the system managed by the Department of Environment, Land, Water and Planning to register, track and process planning scheme amendments.

5. Charitable land

The Commissioner must waive any WGT and accrued interest payable in respect of land owned by a charity that is used and occupied by the charity exclusively for charitable purposes if the land remains as charitable land continuously for 15 years after the relevant WGT event.  Part of the liability will be waived where only part of the land has remained as charitable land for that period.


Is there a right to object to the imposition of WGT?

Taxpayers have the right to object to the valuations on which the assessment for WGT is based, within two months of receiving the notice of assessment.

Importantly, the Bill explicitly provides that the Commissioner will have no discretion to allow a late objection to be lodged by a land owner, which is different from the position in respect of other state taxes such as stamp duty and land tax.

Is there anything else I should know?

Like land tax, any unpaid WGT and accrued interest and penalty tax will be the first charge on the land in respect of which WGT is payable.  This means that it will have priority over any other encumbrances over the land.

The Bill allows for regulations to be issued in respect of the WGT.  We expect that regulations will be issued in respect of allowable deductions for the purposes of calculating the value uplift that is subject to WGT.

Example

Susan owns 40 hectares of land in regional Victoria which she has been farming since 1990.  Nearing retirement, Susan decides to dispose of the land.  In 2022, a property developer enters into a contract to purchase the land from Susan, subject to the land being rezoned to a residential zone.  The completion date of the contract of sale is therefore deferred until the rezoning has occurred.  In September 2024, the local council rezones the land from a farming zone to a residential zone.  The pre-rezoning capital improved value of the land was $5 million and the post-rezoning value is $40 million, generating a value uplift of $35 million and triggering a $17.5 million WGT liability for Susan as the owner of the land at the time of the rezoning event.

If the land included a residential dwelling at the time of rezoning, up to two hectares would be exempt from WGT.  Under the relevant formula, this would result in a WGT liability of $16.625 million, which incorporates a reduction of $875,000 (being 50% of the value uplift that relates to the exempt two hectare portion valued at $1.75 million).

Susan must decide whether to pay the WGT by the due date on the notice of assessment, or request a deferral until the earlier of the next dutiable transaction, or 30 years.  If Susan decides to request a deferral, she would need to pay WGT and the accrued interest to the Commissioner once the contract of sale settles and the land is transferred to the developer.

In 2022, in agreeing to the relevant purchase price under the contract of sale, neither Susan nor the developer are likely to be in a position to determine with accuracy the expected WGT liability from the rezoning of the land in the future.  Accordingly, the extent of the WGT liability may be significantly overestimated or underestimated, leading either to the developer agreeing to pay too much for the land (as well as higher stamp duty based on the excessive price), or Susan being left with a shortfall of proceeds after accounting to the Commissioner for her WGT liability and accrued interest.

Accordingly, if the legislation is enacted in its current form, it will be vitally important for land owners, purchasers and others that are proposing to enter into transactions that relate to land that is impacted by the WGT, to consider the likely extent of that impact moving forwards and relevant provisions that need to be included in option deeds, contracts of sale, development agreements and other related agreements in order to protect their financial position.

Pitcher Partners’ perspective

Whilst we are glad to see the postponement of the commencement date of the WGT by one year and the exemptions, waivers and transitional arrangements in the Bill, we remain wary of the expected issues and impacts of the WGT on land owners, developers and home buyers.

As we have previously stated, although the Victorian Government is promoting the WGT as a tax that will only impact wealthy land owners and developers, the new tax will clearly have a more far-reaching impact, particularly on home buyers.  The WGT is unlikely to help home buyers break into the Victorian housing market, particularly in regional areas.

The significance of the WGT liability could simply make developments unfeasible from the perspective of developers.  To this end, we expect that the new tax will put further pressure on the supply side in regional areas as developers shy away from land parcels that will be caught by the new tax.  Even where developers could make it work, they will naturally factor their direct and indirect WGT costs into the land acquisition and development equations, and push up the price of housing lots, creating further upward pressure on house prices.

With the background of the significant economic and social impacts of the COVID-19 pandemic and Victoria’s population growth shrinking, we are concerned that the WGT will cause a significant disadvantage to regional Victoria on the basis that the GAIC is levied in Melbourne at a much lower rate than the WGT (i.e. between $100,000 and $118,000 per hectare).  In contrast, the rate of the WGT at 50% would be a much more significant impost on land owners in regional areas.  Despite the payment deferral mechanism in the legislation, as the liability crystallizes at the point of the rezoning event and will be a first charge over the land, it will also put significant pressure on those regional land owners (including many farmers) from an access to finance perspective and could seriously impede their ability to proceed with any arrangement to develop the land in the future, putting further pressure on the supply side.

This has the impact of increasing the cost of a house and land package in regional Victoria to the point it will be likely uneconomic and severely impact the availability of housing for workers in the regional Victoria. This, in our view, is neither appropriate nor desirable for Victoria.  The regions should not be at a cost or tax disadvantage to the metropolitan areas, particularly in relation to the fundamental provision of affordable housing and land.

The WGT is contrary to many other sensible policies that provide reduced levies, taxes and charges in regional Victoria relative to metropolitan Melbourne to encourage economic growth, as well as population growth outside of our wonderful capital city, such as payroll tax and stamp duty concessions.

To enable a thriving regional economy, appropriately priced and supplied land must be available. Putting our regions at a significant cost disadvantage to metropolitan Melbourne is a backward step.

Further, we believe the government’s estimation of the WGT it expects to raise is understated due to the rate of the tax, and the number of land parcels it is likely to impact.  In this regard, the “Windfall” in the name of the new tax may more appropriately describe the windfall to the government from WGT collections over coming years.

The WGT is also expected to create a lot of uncertainty in the market due to the inability to determine the WGT liability given that the calculation of the WGT relies on supplementary valuations conducted by the Valuer-General Victoria or a valuer nominated by Valuer-General.  As a result, we expect that a developer or other purchaser will likely pay a premium for the certainty of acquiring already rezoned land (without any future WGT liability), adding to the upward pressure on property prices.

An alternative model

In our view, a more appropriate alternative would be to broaden the existing GAIC regime as it presently applies to metropolitan Melbourne and its immediate surrounds, to regional Victoria, but at a significant discount.  It makes much more sense for the government to extend the existing and well-established mechanisms associated with the GAIC to regional areas rather than trying to re-invent the wheel and impose a completely new tax that will be extremely harmful for the regions.

This would have the advantage of being far less burdensome in its administration and, most importantly, it would not discourage the supply of affordable housing stock in our regions while providing funding to the government of the day for infrastructure.

Next steps

Please contact your Pitcher Partners representative for further information.

This content is general commentary only and does not constitute advice. Before making any decision or taking any action in relation to the content, you should consult your professional advisor. To the maximum extent permitted by law, neither Pitcher Partners or its affiliated entities, nor any of our employees will be liable for any loss, damage, liability or claim whatsoever suffered or incurred arising directly or indirectly out of the use or reliance on the material contained in this content. Pitcher Partners is an association of independent firms. Pitcher Partners is a member of the global network of Baker Tilly International Limited, the members of which are separate and independent legal entities. Liability limited by a scheme approved under professional standards legislation.
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